U.S. Judge Dismisses Free Speech/Free Press Claim

The Selection Officer for the SSA says one reason he didn’t hire the plaintiff (me) is because she (I) wrote an employment law blog on workplace abuse.

Chief U.S. District Judge Miranda Du of Nevada this week dismissed a claim in a lawsuit that I filed against the Social Security Administration (SSA), after it rejected me for a job for which I was superbly qualified in the aftermath of the Great Recession (2011).

A novice SSA Selection Officer said one reason he didn’t select me for hire was because he thought my fledgling employment law blog, When the Abuser Goes to Work, was a “red flag” and he was concerned I might one day question his management skills.

I began the blog as a public service in connection with my book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace. The blog, syndicated by Newstek, is legally and unquestionably a work of journalism.

The shocking age discrimination I experienced when I applied for the SSA job in Reno, NV, in the waning days of the Great Recession, prompted me to research age discrimination and write my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace.

A few tibits – 26 applicants (all but one under the age of 40) responded to a ridiculously narrow recruitment for five attorney vacancies. I found out about the vacancies by chance when I saw an announcement on USAJobs for a different job at the Reno office. The SSA repeatedly tried to hire five candidates under the age of 40 but was thwarted when candidates rejected job offers. The ninth selectee was the only other candidate over the age of 40 (a 47-year-old male).

The SSA says the candidates were hired based on “personality” and “cultural fit.”

In 2019, Judge Du dismissed the entire case, calling it futile, and issued her ruling with prejudice (barring me from refiling the case).

The Ninth Circuit

I filed an appeal with the Ninth Circuit Court of Appeals in San Francisco, which in 2021 reinstated my claim of systemic age discrimination, finding it “plausible,” and remanded the case back to Judge Du.

The Ninth Circuit, however, dismissed my claims that the SSA retaliated against me for engaging in “oppositional activity” in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. The oppositional clause prohibits employers from retaliating against job applicants because they oppose or contest unlawful employment practices. The Ninth Circuit said my blog didn’t qualify as oppositional activity because it did not specifically oppose discrimination by the SSA.

The Ninth Circuit’s ruling left me with no choice but to file a First Amendment complaint against the Selection Officer.

In light of Judge Du’s dismissal of the First Amendment claim, I now have no recourse for what many would consider to be a patently obvious violation of the U.S. Constitutional guarantees of freedom of speech and freedom of the press. And, of course, this ruling doesn’t just affect me.

An Innocent Motive

So here’s why Judge Du dismissed my First Amendment retaliation claim.

She said the Selection Officer was acting in his official capacity and then expressed concern that hordes of disappointed job seekers might file First Amendment claims.

Then she wrote in her decision that the Selection Officer had an “innocent motive” for not hiring me.

Initially the Selection Officer said he didn’t hire me because I was not sufficiently “enthusiastic” about the job, despite contrary evidence. I went to far greater lengths to discover and apply for the position than any other applicant. I repeatedly said I was enthusiastic about the job.

According to Judge Du: “[H]e felt she was not sufficiently enthusiastic about the position. This alone is an innocent motive and raises doubt that [the Selection Officer] retaliated against Barnes by not hiring her, solely on the basis that she exercised her right to protected speech.”

Tuesday was World Press Freedom Day but what is freedom when federal courts refuse to enforce the U.S. Constitution on behalf of journalists and anyone else who writes about topics, including worker rights, that make federal bureaucrats uncomfortable.

Federal Judiciary Recognizes Civility And Respect In Its Workplace

The federal judiciary routinely hears (and often dismisses) lawsuits filed by workers who have suffered soul crushing disrespect, humiliation and abuse from an employer.

This is one reason why the recommendations of The Federal Judiciary Workplace Conduct Group matter.

The group this week re-committed to the promotion of an “exemplary workplace” for the 30,000 employees of the federal court system “through engaged leadership and more expansive education in the areas of civility, respect and communication.”

Historically, federal judges have graduated from elite colleges and law schools to high-paid jobs in private law firms representing employers to the bench. There, they are exempt from federal discrimination laws. And they have lifetime tenure and can’t be forced to retire.

The federal judiciary’s workplace was the antithesis of democratic. Federal judges were the equivalent of kings in their chambers, and many young law clerks were treated more like serfs than workers.

After several high profile cases where staff complained of sexual harassment and workplace bullying by federal judges, U.S. Supreme Court Chief Justice John G. Roberts, Jr., in 2018 appointed the workplace conduct group to improve the environment in which federal employees work.

If federal judges must treat their workers with dignity and respect, perhaps they will expect this of other employers?

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Can The Richest Man In the World Be Bullied?

Apparently, the richest man in the world is not exempt from bullying.

At least that is how Tesla CEO Elon Musk interprets a Feb. 7 subpoena from the Securities Exchange Commission (SEC) seeking information about Musk’s compliance with a 2018 settlement that requires Musk’s tweets on “material information about the company” be vetted by company lawyers prior to posting.

Musk clearly has irritated the SEC and, more generally, the Biden administration by controversial opinions that seem to have little, if any, relationship to TESLA.

Freedom Convoy

Musk has exercised what many would consider to be his First Amendment right to communicate with his 63 million followers on Twitter (twice as many as Pres. Biden).

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No Immunity For Officials Who Retaliated Against Police Capt’s Free Speech

The U.S. Court of Appeals for the Fifth Circuit has ruled that a trio of Wood County, TX, officials must answer charges they conspired to retaliate against a police captain because he exercised his First Amendment right to freedom of speech.

The three-judge panel ruled 2-1 to deny qualified immunity to the defendants, local Judge Jeff Fletcher, Sheriff Tom Castloo and former District Attorney James Wheeler.

Quitman Police Department Captain Terry Bevill has charged the trio with conspiring to have him fired and arrested for agreeing to a lawyer’s request to sign an affidavit for a friend

Bevill signed the affidavit in his personal capacity to support a venue transfer for the criminal trial of former Wood County Jail Administrator David McGee. Bevill said McGee would not get a fair trial in the county for facilitating the escape of an inmate and tampering with government documents because of the close personal relationship between Castloo, Wheeler and Fletcher.

The affidavit described Belvill “[a]s a longtime resident and law enforcement officer” who was “familiar with the local players and political climate.”

Castloo, Wheeler and Fletcher subsequently demanded Quitman Mayor David Dobbs fire Bevill, allegedly threatening to refuse to take future cases and to deny support for the police department. After pressure from Dobbs, Police Chief Kelly Cole fired Belvill on the grounds he violated a policy that bars police from interfering with courts.

Meanwhile, McGee’s case was not transferred and a jury found him guilty.

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What Does The Palin Verdict Really Mean?

Sarah Palin lost her libel trial against The New York Times on Tuesday but a question lingers about whether she was treated fairly.

Palin, a 2008 GOP candidate for vice president, is not beloved by the powers that be. She is a gun-toting hick from Alaska who is not well read and who makes hokie references to “hockey moms” and “lipstick on a pig.” Palin, a former Alaska governor, is especially loathed by Harvard grads and urban elites.

Still, the beauty of the American justice system is that even the most despised are entitled to basic fairness and justice under the law.

It rankles that U.S. District Judge Jed Rakoff, 78, the semi-retired judge who presided over the trial, announced Monday that Palin had not met the high standard for malice to prevail in the case. He said he would dismiss the case regardless of the jury’s verdict.

The jury was deliberating at the time. Reuters reported Wednesday that jurors received phone notifications that the judge had decided to dismiss the case regardless of their verdict. Clearly Judge Rakoff’s pronouncement could have prejudiced the jury.

Timing Is Everything

It was Judge Rakoff’s job to tell the jury what the law is and the jury’s job to apply the law to the facts in the case.

The jury was in the process of deciding whether the NYT showed actual malice in 2017 when it published a preposterous allegation that a political ad by Palin’s political action committee incited the 2011 shooting of former U.S. Rep. Gabby Giffords and 18 others at a constituent meeting in Tucson. Indeed, the editorial said “the link to political incitement was clear.” The editorial was written by two NYT editorial writers and cleared by a NYT fact checker.

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